Hindu marriage

Application Of Hindu
Marriage Act 1955
Who is Hindu
● Any Person who is Hindu, Jain, Sikh, or Buddhist by religion i.e.
Hindu by religion.
● Any person who is Born of Hindu Parents.
● Any person who is domiciled in the territories to which the Act
extends who is not Muslim, Christian, Parsi or Jew and who is
not governed by any other law.
● Any person who is convert and Re-convert to Hindu.
● Exception- Act will not be applicable to Scheduled Tribes with
the meaning of Cl(25) of Article 366 of Constitution.
 Introduction
1) Marriage : Meaning and Definition
● Meaning - Marriage is the ‘nucleus’ of the family. It is a process, by
which the physical union of a man and woman is legalised and
thereby regulates the social life. According to Tomlin’s Law
Dictionary – “marriage is a civil and religious contract, whereby a
man is joined and united to a woman, for the purpose of civilized
society. In other words, the very foundation of the family and society
is the marriage. Hindus consider marriage as a necessary sanskar and
sacramental union – a sacrosanct, permanent, indissoluble and
eternal union.
●A man or woman without spouse (a lawfully wedded wife or
husband) enjoys no social status and is looked down in the
society. In simple words, a spouseless person is like a
“leafless tree”.
●According to Vedas, a marriage is “the union of flesh with
flesh and bone with bone’’. It is the union which Vedas regard
indissoluble. So long as the husband is alive the wife is
enjoined to regard him as her God, similarly the wife is
declared to be half the body of her husband (Ardhangini) who
shares with him equally the fruits of all his acts whether they be
good or bad.
 Evolution of Institution of Marriage
● Establishment of Institution of marriage did not exist among the
primitive man. At that time man lived more or less like any other
animal. He was so engaged with his primary needs, hunger and
shelter
● No institution of marriage. Sexual relationship remains
unregulated. Maternity alone could be known. Paternity could not
be determined.
● Civilization drawn on man acquisition of knowledge of cattle,
breeding, agriculture and Industry. Nearly family relationship came
into existence and sexual relationship was regulated by certain
usages.
● At first Endogamy was practiced-marriage within Tribe
● Then Exogamy- marriage outside community, clan or Tribe
 2) Object of the Marriage
According to Mitakshara Law, marriage has three objects
namely :
●(i) Dharma Sampatti : The main object of the marriage is
‘Dharma’. As per Vedas, the highest act of dharma lies in the
performance of Yagnas (i.e., Yagkya) and Sacrifices. Shastras do
not allow a wife-less man to perform Yagnas or Sacrifices or
anniversaries of the ancestors. Moreover, there must be a wife for
honouring the guests, which is an act of Dharma. In those days,
honouring the guest was regarded as Godliness. The sacrifice of
the only son by Bhakta Siriyala in honouring the Guest is the best
example.
(ii) Praja Sampatti : Marriage is one of the essential sanskaras to
have a son. The son by performing the religious ceremonies
fulfills the object of Praja Sampatti. He can avoid the torturing
of the soul of the parted ancestors i.e., father/grandfather/great
grandfather, in the hell called ‘put’, by performing the obsiquies.
(Obsiquies : funeral rites and solemnities).Therefore, the son is
called ‘Putra’, a means of salvation.

(iii) Rati Sukham : The third object is ‘Rati Sukham’ , the

pleasure of Physical relations enjoyment. It is for the fulfillment
of biological needs.
Nature of Hindu Marriage

Whether Hindu Marriage is a sacrament ( and Sacrosanct) or

a Civil Contract or both the Sacrament and Civil Contract?

●Performance of Ceremonies- Marriage cannot take place

without performance of Sacred rites and ceremonies.
●Permanent Union- Marriage is considered as a permanent
Union between husband and wife which cannot be untied. Wife
was also considered as Ardhangini.
●Holy Union Marriage is eternal union means death cannot
break the bond of marriage, i.e. it is not merely in this life but
even after death

●Marriage was meant for doing good deeds and for attainment
of Moksha. Hindu Marriage was more connected with the
performance of religious duties and begetting of a son, who
enables a man to get deliverances from the sufferings of Hell.
Marriage was not a contract. According to Manu, it is
solemnised once and for all.
Hindu Marriage is a Civil Contract

There are certain legislation in modern law, which render

marriage a civil contract by making provision for
dissolution of marriage as follows :
●Marriage to be sacrament, it should be indissoluble union.
Section 13 and 13-B of the Hindu Marriage Act, 1955
made provisions for dissolution of marriage.
● Similarly, the provisions for maintenance of wife under
Section 18 of the Hindu Adoption and Maintenance Act,
1956.
● Section 24 & 25 of the Hindu Marriage Act and Section 125
of the Code of Criminal Procedure accelerate the inclination
of a married woman to break the matrimonial tie.
● Judicial Sepration.
● Age of marriage.
Section 5
i. Monogamy.
ii. Valid Consent.
iii. Age of Parties to marriage
iv. Prohibited Relations.
v. Sa-pindas
Conditions of Hindu Marriage

●Monogamy - Sec 5(i) : Monogamy means having one

spouse. Spouse means a lawfully wedded wife or husband.
(Bigamy means having two spouses; Polygamy means
having more than one wife; Polyandry means having more
than one Husband). A Hindu cannot have more than one
spouse living. So, a person who wants to get married should
not have spouse living at the time of marriage. He/She
should be unmarried or a widower/widow or divorced.
●If the person having a spouse (living at the time of marriage
and not divorced) marries again, he/she is guilty of Bigamy
under Section 17 of the Hindu Marriage Act,1955.Such
marriage is declared void under Section 11 of the Hindu
Marriage Act, 1955.The person, guilty of the offence of
Bigamy is liable for punishment under Section 494 and 495
I.P.C.
● “Hindu can have only one marriage subsisting at a time”

●Case- Smt. Yamuna Bai Anant Rao Adhav v. Anant Rao

Shiva Ram Adhav AIR 1988 SC 644 Supreme Court has
laid down that in the event of breach of first condition
specified in Section 5(1) the marriage is rendered as null
and void under section 11(1) of the Act and since it is void
ab initio, the wife cannot claim maintenance under section
125 of Code of Criminal Procedure Code.

●Sarla Mudgal & Others v. U.O.I A.I.R 1995 SCC (3)

635 husband Converted into a Muslim by adopting Islam,
then married another wife. Here the question was whether
after conversion the first marriage is annulled or it becomes
void and whether the husband commits an offence of
Bigamy. The court held that the first marriage subsists and
the husband commits the offence of Bigamy
●Lily Thomas v. U.O.I (A.I.R 2000) the same case question arose
before the court for consideration. Supreme court held that the
institution of marriage in every personal law is a sacred
institution, Therefore religion is not a commodity to be exploited.
It is a matter of faith. When non Muslim married according to
religious rights stipulating monogamy, renounces his religion,
converts to Islam and solemnizes second marriage, according to
Islamic rights without divorcing first wife, the second marriage is
void. Here a person feigns to have adopted another religion, just
for some worldly gain or benefit, this is religious bigotry, the
conversion does not automatically dissolve the second marriage.
Such marriage is punishable under section 17 of HM Act 1955.

●Santosh Kumari v. Sujit Singh AIR 1990 HP the high court

ruled that even in a case where in her own suit, wife has declared
declaration that her husband could remarry during her lifetime,
the marriage of her husband with another women would be
illegal despite the consent of his first wife and giving such
declaratory relief by the court concerned would be erroneous and
illegal
● The breach of 1st condition of section 5 result into 2
consequences, namely
a) Such marriage will become null and void under section 11
b) The erring party to such marriage would be liable to be
prosecuted under section 17 of the Act and punishment under
494 and 495 of IPC imprisonment of either description for a
term which may extend upto 7 years and, or shall also be
liable to fine.
Soundness of mind Sec 5(2)
Neither party at the time of marriage-
a) Is incapable of giving valid consent to it in consequence
of unsoundness of mind
b) Though capable of giving valid consent has been suffered
from mental disorder of such kind or to such an extent as
to be unfit for marriage and procreation of children; or
c) Has been subject to recurrent attacks of insanity or
epiliepsy.
● The term at the time of marriage connotes that if at the time of
marriage the parties to it are of sound mind but later become
insane or mentally unsound then this eventually would not
affect the validity of marriage.

●In this respect it would be necessary to establish that such

mental disability existed either before or since the time of
marriage

●If the factum of prior mental disability has been concealed, or

has been avoided to be stated by the parents of either party, the
marriage would be declared to be void under section 12 (1) (c)
and it would be no defense to plead that it was the duty of the
other party to have himself investigated and discovered the
truth.
●Case- Amina Rai v. Prabodh Mohan Rai laid
down that since the word insane is not been
defined under the Act. Its meaning and Purpose
would be the same as under Section 3(5) of
Insanity Act.

●Triveni Singh v. State of U.P the Allahabad

High Court Held that, annulment of marriage
cannot be sought on ground that wife had HIV
infection or any other disease at the time of
marriage. Marriage can be dissolved under this
clause only on the ground of mental disease
Age of Parties
● Earlier 18 (males) and 15 (Females)
● After child marriage restraint (Amendment Act)1978 age
stand substituted by 21 and 18 years respectively.

● Case- Pinniti Venkatarama v. State any marriage

solemniesed in contravention of cl (iii) of Sec 5 is neither
void nor Voidable, the only consequences is that the
person concerned are liable for Punishment under section
18.
● Factum Vallet- The corresponding maxim in Roman Civil
Law for this is “factum valet quad fieri non deuit” i.e. what
ought not to be done becomes valid when done. This
doctrine was applied by the British courts in India. The
doctrine declare that a fact cannot be altered by a
hundred text of law. If the fact is accomplished or an act is
done the fact will nevertheless stand but the act done will
be deemed to be legal and Binding

● Section 18(a) – Punishment Rigorous Imprisonment

2 years 1 lakh Rupees
Prohibition as to Prohibited
degrees of Relationship
● Consanguity
● Affinity.
● Punishment – Simple Imprisonment
Beyond Sapinda Relationship
● Saha Pinda= same pind
● Particles of body
Void Marriage

● Section 11: Any marriage solemnised after commencement of

this Act shall be null and void and may on petition presented
on either party be so declared by the decree of nullity if it
contravenes any of the condition specified in clause (i) (iv)
and(v) of Section 5
Voidable Marriage
●Impotent
●Valid Consent not given during marriage.
●Consent- Fraud and Force
1. Petition to be instituted within one year after
force ceased or Fraud Disconcei
2. Petitioner with her/his full consent lived with
rspondent
●Pre-Marital Pregnancy-Pregnant by person other
than petitioner.
1. Ignorant of the fact at the time of marriage
2. 1 year within date of marriage.
3. Marital intercourse without the consent of
petitioner has not taken place Since the
Discovery of case